The Day Oliver Wendell Holmes Changed his Mind About Free Speech

Here is an illustration of why it is vitally important that we (sometimes) change our minds. This is an excerpt from the famous dissent of Oliver Wendell Holmes in the 1919 case of Abrams v The United States:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

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NPR Incoherently Lashes Out at “Free Speech”

Matt Taibbi's latest article, with which I completely agree: "NPR Trashes Free Speech. A Brief Response: In an irony only public radio could miss, "On the Media" hosts an hour on the perils of "free speech absolutism" without interviewing a defender of free speech." An excerpt:

The guests for NPR’s just-released On The Media episode about the dangers of free speech included Andrew Marantz, author of an article called, “Free Speech is Killing Us”; P.E. Moskowitz, author of “The Case Against Free Speech”; Susan Benesch, director of the “Dangerous Speech Project”; and Berkeley professor John Powell, whose contribution was to rip John Stuart Mill’s defense of free speech in On Liberty as “wrong.”

That’s about right for NPR, which for years now has regularly congratulated itself for being a beacon of diversity while expunging every conceivable alternative point of view.

I always liked Brooke Gladstone, but this episode of On The Media was shockingly dishonest. The show was a compendium of every neo-authoritarian argument for speech control one finds on Twitter, beginning with the blanket labeling of censorship critics as “speech absolutists” (most are not) and continuing with shameless revisions of the history of episodes like the ACLU’s mid-seventies defense of Nazi marchers at Skokie, Illinois.

The essence of arguments made by all of NPR’s guests is that the modern conception of speech rights is based upon John Stuart Mill’s outdated conception of harm, which they summarized as saying, “My freedom to swing my fist ends at the tip of your nose.”

Because, they say, we now know that people can be harmed by something other than physical violence, Mill (whose thoughts NPR overlaid with harpsichord music, so we could be reminded how antiquated they are) was wrong, and we have to recalibrate our understanding of speech rights accordingly.

This was already an absurd and bizarre take, but what came next was worse. I was stunned by Marantz and Powell’s take on Brandenburg v. Ohio, our current legal standard for speech, which prevents the government from intervening except in cases of incitement to “imminent lawless action”:

"MARANTZ: Neo-Nazi rhetoric about gassing Jews, that might inflict psychological harm on a Holocaust survivor, but as long as there’s no immediate incitement to physical violence, the government considers that protected… The village of Skokie tried to stop the Nazis from marching, but the ACLU took the case to the Supreme Court, and the court upheld the Nazis’ right to march.

POWELL: The speech absolutists try to say, “You can’t regulate speech…” Why? “Well, because it would harm the speaker. It would somehow truncate their expression and their self-determination.” And you say, okay, what’s the harm? “Well, the harm is, a psychological harm.” Wait a minute, I thought you said psychological harms did not count?"

This is not remotely accurate as a description of what happened in Skokie. People like eventual ACLU chief Ira Glasser and lawyer David Goldberger had spent much of the sixties fighting the civil rights movement. The entire justification of these activists and lawyers — Jewish activists and lawyers, incidentally, who despised what neo-Nazi plaintiff Frank Collin stood for — was based not upon a vague notion of preventing “psychological harm,” but on a desire to protect minority rights . . . .

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If you are wondering whether Taibbi is accurately portraying this NPR discussion, I invite you to listen to it here. NPR's conversation is stunningly muddled and incoherent. None of the guests show any meaningful familiarity with the work of John Stuart Mill. None of the participants demonstrate a working understanding of the First Amendment or the case law interpreting it. The result is that most of the discussion is aimed at straw men. And fully in line with what NPR has done, it stirred in a discussion of the "implicit bias" test in this free speech discussion, the perfect cherry on top for NPR's increasingly woke audience. This is what passes for a meaningful discussion at NPR.

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Ninth Circuit Court of Appeals to Decide Who Qualifies as a “Woman” Athlete in Idaho

Is a particular person was a "woman"? For most of my life, everyone I knew would say that the question is answered by considering what kind of genitals that person had. For many people, the answer to that question is no longer answered purely by biology. And to make the discussion all-the-more confusing, transgender activists insist that "intersex" conditions are relevant to this discussion while others consider intersex a red herring.

Lindsay Hecox v Bradley Little [Governor of Idaho] will weigh in on this issue.  This appeal is pending in the Ninth Circuit (and perhaps headed to the United States Supreme Court). The context is transgender sports competition involving students in Idaho. A new Idaho statute is the focus of this lawsuit. The following excerpt is a description of Idaho law taken from the appellate brief of Idaho (the Defendant):

The statute at issue is the Fairness in Women’s Sports Act, Idaho Code §§ 33-6201 through -6206. The Act excludes members of the male sex from participating in sports designated for athletes of the female sex due to males’ physiological advantages, consistent with settled Ninth Circuit law . . . . The Act also permits male and co-ed teams, both of which are open to members of either sex. See Idaho Code § 33-6203.

To ensure the Act’s protections for female athletes, the Act provides that if a dispute arises over a student’s sex and eligibility for female sports, the student may establish female sex in one of three ways: through a high school health examination and consent form signed by a health care provider, which all student-athletes must submit; through another written statement signed by the student’s health care provider; or through a sports physical examination, in which the health care provider relies on one of three specified criteria to determine sex. See Idaho Code § 33-6203(3). See also ER 417-19 (Idaho High School Activities Association Health Examination and Consent Form); IHSAA Rule 13 (requiring high school athletes to submit form). The Act does not provide any sex-verification procedures for male or co-ed sports, because they are open to all, regardless of sex. In support of the bill, the Idaho Legislature made a number of findings based on court decisions, scholarly publications, and scientific studies recognizing the physiological advantages members of the male sex have over their female counterparts. Idaho Code § 33-6202(8)-(11). The Legislature also described the Act’s purpose:

Having separate sex-specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors. Id. § 33-6202(12).

Plaintiffs describe the Idaho law at page 8ff of their brief.

A federal trial court granted an injunction, holding that the above law violates federal law. See the Idaho Brief at pp 6-7 and the Plaintiffs' brief, pp. 2-4 for more detail. This is a fascinating set of briefs for many reasons, one of them being that if you read both briefs, it is often hard to believe that they are describing the same lawsuit. That is because the crux of the case is whether one of the two plaintiffs, Lindsay Hecox, is more accurately described as male versus female. Consider Hecox's descriptions in the two briefs:

[From the Plaintiffs' Brief, p. 15: "Lindsay is a woman athlete living in Idaho who is transgender." Plaintiffs' brief includes a photo of Lindsay:

[From Defendant Idaho's Brief] "One plaintiff is Lindsay Hecox, who is transgender, and whose sex is male but whose gender identity is female."

Both sides agree that Lindsay is "transgender." As you can see, Plaintiffs claim she is "a woman" while Idaho states that the "sex is male."

I haven't yet read every word of every brief, but I have reviewed a lot of the filings.  In case anyone is interested in following along to see exactly what is being claimed as far as the "facts" or the law, you are welcome to click on the links below.  My focus is biology, but the Plaintiffs claim that biology does is not determinative.

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